QUESTION
I have been separated for a year my husband has a 401k I want some of that do I have to file for a divorce before I get some?
Asked on Oct 31st, 2012 on Divorce - Michigan
More details to this question:
I don't really have the money to file for a divorce and my husband won't pay for it so if we don't get divorce am I still able to get some of his 401k.
17 ANSWERS
Glen Edward Ashman
Unless you file divorce, no.
Answered on Jun 13th, 2013 at 1:33 AM
Leonard A. Kaanta
No, you must file.
Answered on Jun 13th, 2013 at 1:31 AM
Personal Injury Attorney serving Pacific, MO
at
Melvin G. Franke
Update Your Profile
Yes, call legal aid.
Answered on Nov 06th, 2012 at 8:16 AM
Michael Paul Vollandt
I ketch 22 problem. I think you will have to file the divorce; notify the 401(k) people that you claim a community property portion of that plan (that will freeze it so hubby will not loot it) and see if a lawyer will allow you to make payments on his bill. Some place in the process a Judge may order your Husband to pay for some of your legal costs.
Answered on Nov 01st, 2012 at 4:49 PM
Criminal Defense Attorney serving Deltona, FL
at
R. Jason de Groot, P.A.
Update Your Profile
The only way you are going to see your share of his 401K, is if you file a divorce action and either settle the case or go to trial.
Answered on Nov 01st, 2012 at 4:15 PM
You won't get it until he retires. If you don't have an action before the court the money will not be rolled into an IRA for you. And you cant touch the money until you are 59 1/2 without tax and penalties
Answered on Nov 01st, 2012 at 4:14 PM
Family Law Attorney serving Newbury Park, CA
at
Tristan Tegroen, Attorneys at Law
Update Your Profile
Probably not. My guess is that the plan is covered by a Federal law called ERISA - this means that you will need a QDRO to divide it - this can only be done under a divorce. If the expense is too much, you might qualify for a waiver of fees. Further, you could represent yourself. This will cost you nothing. Most courts have clinics, too.
Answered on Nov 01st, 2012 at 4:12 PM
Dispute Resolution Attorney serving Seattle, WA
at
Law Offices of Helene Ellenbogen P.S.
Update Your Profile
Until there is a divorce nothing is divided in a legal sense. a 401(k) can only be divided when there is an order to do so. Once a divorce is filed, all assets, including all retirement funds must be divided. Your husband has no duty to pay for your part of the divorce. If you file and he earns substantially more than you do, you can ask the court to order that he pay a portion of your legal fees. If he doesn't earn substantially more, than there is no basis for the court to do so.
Answered on Oct 31st, 2012 at 5:50 PM
Probate Law Attorney serving Colorado Springs, CO
at
John E. Kirchner
Update Your Profile
Unless your husband does so voluntarily, you will have to pursue the divorce in order to divide the account and have the court enter a QDRO (Qualified Domestic Relations Order). Depending on the terms of the Plan, you husband may not even be permitted to make any withdrawals without a QDRO and even if he can, he won't get the tax and penalty waivers that occur when the withdrawal is due to divorce.
Answered on Oct 31st, 2012 at 5:50 PM
You and your spouse might want to consider Mediation instead of getting an attorney. Mediation is Fast, Effective and Affordable. Check it out.
Answered on Oct 31st, 2012 at 5:49 PM
Divorce & Separation Attorney serving Menasha, WI
at
Petit & Dommershausen, S.C.
Update Your Profile
No you don't get anything unless he agrees it the court orders it split
Answered on Oct 31st, 2012 at 5:48 PM
You are entitled to that portion of his 401k that was acquired during your marriage and before you became separated. Yes. You do need to file papers to protect your interest in that asset. Seek help from the family law facilitator in your county. they are usually located at the family law court house.
Answered on Oct 31st, 2012 at 5:48 PM
Yes, you must file in order to get an order dividing the asset. You can request a fee waiver that would allow you to file for dissolution without paying anything. You should consult a family law attorney or facilitator to assist you.
Answered on Oct 31st, 2012 at 5:47 PM
Divorce/Family Law Attorney serving Carlsbad, CA
at
Anne B. Howard, A Professional Law Corporation
Update Your Profile
You have to file for divorce, also file for a hearing for spousal support and attorney fees. The court may order him to pay towards your attorney fees. It is important that an attorney sends the proper documents to the 401K plan so that your husband doesn't liquidate it. Opinion only not legal advice.
Answered on Oct 31st, 2012 at 5:46 PM
Suzanne H. Lombardi
There would be no means to get his 401(k) without a divorce. If the split was fairly amicable it should not cost you too much money but you should contact an attorney to find out the costs.
Answered on Oct 31st, 2012 at 4:49 PM
Alternative Dispute Resolution Attorney serving Ventura, CA
at
Zahn Law Office
Update Your Profile
If he won't cooperate, then yes, you will need to file for divorce or legal separation.
Answered on Oct 31st, 2012 at 4:49 PM
You will need to file for divorce and have a Qualified Domestic Relations Order entered along with the Judgment to get a share of your husband's 401k (half of what was accumulated during the marriage). An experienced attorney can help you with the process. If the expense of filing is prohibitive, you can seek out assistance from legal aid; if you are indigent, the court can suspend the filing fees or order your spouse to pay them. Also, you can file a motion to have your husband pay your attorney fees.
Answered on Oct 31st, 2012 at 4:49 PM